Tuesday, 3 February 2015

Ending the exploitation of seasonal workers: EU law picks the low-hanging fruit

Steve Peers

For a long time, it proved
impossible for the EU to agree on legislation on migrant workers coming from
non-EU countries. Eventually, the Member States were able to agree on some laws
that mostly concerned higher-income migrants: the Blue Card Directive (on its
implementation, see here) and the Directive on intra-corporate
transferees (see discussion here). The EU has also adopted some general
rules on the overall framework for admission of labour migrants (the so-called single permit Directive).

But for the first time last year,
the EU also adopted rules on a less well-paid group of migrant workers: seasonal
workers. This group of workers is potentially particularly vulnerable to exploitation
and abuse. Does the recent Directive go far enough to protect them from
these risks?

Content of the
Directive

Member States have
to apply this Directive by 30 September 2016, and the UK, Ireland and Denmark
opted out of it. It is limited in scope to those who normally reside
outside the territory of the EU, and who apply to be admitted as seasonal
workers, or who have already been admitted under the terms of the Directive. Also,
it applies to those admitted for less than three months as well as those
admitted for a longer period. For the former group, the Directive specifies
that the EU’s borders and visas legislation continues to apply, and makes a
number of cross-references to those measures. Furthermore, the Directive does
not apply to those workers who are usually employed in other Member States, and
who are ‘posted’ by their employers to work in a second Member State, to non-EU
family members of EU citizens, and to non-EU citizens covered by an agreement
which extends free movement rights (the EEA or EU/Swiss treaties).

A ‘seasonal worker’ is a worker
who normally resides outside the EU, and who lives temporarily in the EU to ‘carry
out an activity dependent on the passing of the seasons’, pursuant to a
fixed-term contract concluded directly with an employer established in a Member
State. The concept of a seasonal activity is in turn defined as an ‘activity
that is tied to a certain time of the year by a recurring event or pattern of
events linked to seasonal conditions during which required labour levels are
significantly above those necessary for usually ongoing operations.’ Member
States have to define what the relevant sectors are; the preamble refers to
tourism, agriculture and horticulture as areas where seasonal work is usually
needed.

Member States are free to set
higher standards for certain issues (procedural safeguards, accommodation,
workers’ rights and facilitation of complaints), but otherwise the Directive
has set fully harmonised rules. So Member States can’t alter the substantive
grounds for admission or the rules on duration of stay and re-entry.

The key criteria for admission are
fully mandatory. Member States have to ensure that an application to enter as a
seasonal worker is accompanied by: a valid work contract or binding job offer,
setting out all of the details of the job; a valid travel document (possibly
valid for the entire duration of the seasonal work); evidence of having, or
having applied for, sickness insurance (unless such coverage comes with the
work contract); and evidence of having accommodation, as defined in the
Directive (see below). Member States have to check that the seasonal worker has
sufficient resources not to have to use the social assistance system, cannot admit
persons considered to pose a threat to public policy, public security or public
health, and must check that the applicant does not pose a risk of illegal
immigration and intends to leave the Member States’ territory when the
authorization for seasonal work expires.

Applications have to be rejected whenever
these conditions are not met, or where the documents presented with an
application are ‘fraudulently acquired, or falsified, or tampered with.’ Member
States also have to reject applications, ‘if appropriate’, where there has been
a prior sanction against the employer for ‘undeclared work and/or illegal
employment’, the employer is being wound up or has no economic activity, or the
employer has been sanctioned for breach of the Directive.

Otherwise the grounds for refusal
of an application are optional: a labour market preference test for home State
citizens, other EU citizens or third-country nationals lawfully residing and
forming part of the labour market; the application of Member States’ rules on
volumes of admission of third-country nationals; or breaches of employment law
by the employer, the use of seasonal work to replace a full-time job, or a
prior breach of immigration law by the would-be worker. There are similar
provisions on withdrawal of the authorisation to work as a seasonal worker, although
it should be noted that Member States can withdraw authorization if the worker
applies for international protection.

As for the admission procedure,
Member States have to make information available on the conditions of entry and
residence and rights, as well as the admission process. It’s up to Member
States to decide whether the applicant or the employer makes the application, and
the application process takes the form of a single application procedure for a
combined work/residence status. Those applicants who fulfil the admission
criteria and who do not fall foul of the grounds for refusal must be granted a permit
or visa, in the format of the EU standard visa or residence permit.

There’s a total maximum limit of between
five and nine months per calendar year of residence for a seasonal worker; they
must then return to a third country. Since the Directive only regulates
admission and stay of seasonal workers, it should follow that Member States still
retain discretion to permit the worker to stay for longer on some other ground.

Within the maximum time limit,
seasonal workers will be able, on one occasion, to change employers or to
obtain an extension of their stay with their employer, if they still meet the
criteria for admission, although the grounds for refusal will still apply. The
preamble makes clear that this possibility is intended to avoid abuse, since
the worker will not be tied to a single employer. Member States will have an
option to allow further extensions or changes of employer. But again they can
punish any worker who applies for international protection, by refusing to
extend that worker’s stay.

Next, the Directive facilitates
the re-entry of seasonal workers who were admitted at least once within the
previous five years, if they complied with immigration law during their stay. This
could include a simplified application process, an accelerated procedure,
priority for previous seasonal workers, or the issue of several seasonal worker
permits at the same time. The idea is to give an incentive to workers to comply
with immigration law.

Member States have to impose
sanctions against employers who have breached their obligations under the
Directive, including a possible ban on employing seasonal workers. If seasonal
workers’ permit to work is withdrawn because of the employer’s illegal
behaviour, the employer must compensate the employees for all the work they
have done or would have done. There are specific rules on the liability of
sub-contractors.

Moving on to procedural
safeguards, the Directive provides for: a notified decision in writing within ninety
days of the application; special rules on the renewal of authorization; a
chance to provide additional necessary information within a reasonable
deadline; and a requirement that a rejection (or withdrawal or non-renewal of a
permit) be issued in writing and open to a legal challenge, with information on
the reasons for the decision, the redress available, and the relevant
time-limits. Member States may charge fees for applications, if they are not
disproportionate or excessive, and may require employers to pay the costs of
workers’ travel and sickness insurance. Workers’ accommodation must ensure an ‘adequate’
standard of living, rents cannot be excessive, a contract for housing must be
issued, and employers must ensure that accommodation meets health and safety
standards.

As for the rights of seasonal
workers, first of all they have the right to enter and stay on the territory of
the relevant Member State, free access to the territory of that Member State,
and the right to carry out the economic activity which they have been authorized
to take up.Furthermore, they have the
right to equal treatment with nationals as regards terms of employment
(including working conditions), freedom of association, back payments, social
security, the transfer of pensions, access to goods and services available to
the public (except housing), employment advice (on seasonal work), education,
and recognition of diplomas, and tax benefits. However, equal treatment can be
restricted as regards family benefits, unemployment benefits, education and tax
benefits, and Member States are still free to withdraw or to refuse to renew
the permit in accordance with the Directive. Finally, Member States must ensure
monitoring, assessment, and inspections, and facilitate complaints workers or by
third parties supporting or acting on their behalf.

Comments

According to its preamble, the
intention of this Directive is to regulate the admission of seasonal workers
with a view to enhancing the EU’s economic competitiveness, optimizing the link
between migration and development, while guaranteeing decent working and living
conditions for the workers, alongside incentives and safeguards to prevent
overstaying or permanent stay. In principle it has achieved some of these
goals, in particular by including a number of provisions to ensure equal
treatment and decent accommodation for seasonal workers, to punish employers
who mistreat workers or who breach immigration law, and to guarantee that the
rules in question are enforced.

In fact the Directive was
significantly improved on these points during the legislative process, in particular
as regards monitoring and punishment of dodgy employers, accommodation
standards, equal treatment (which was significantly extended in scope),
employees’ costs, and remedies against employers (compare the final Directive
to the original proposal). Doubtless this was largely due to the hard
work of NGOs which raised these issues (see their joint statement here).
Perhaps the EU should use this Directive as a template to try and address the exploitation
of other vulnerable groups of migrant workers – for instance domestic workers,
who are at particular risk of being enslaved or trafficked.

Having said that, there are some
limits to what Member States were willing to agree. There are exceptions from
the equal treatment rule, and some of the provisions on dodgy employers, as
well as the ban on passing costs along to the workers, are optional, not
mandatory. (See the comments on the final Directive by a group of NGOs
here). The right to change employers is
subject to conditions, and Member States might decided to allow only one such
change. More broadly, while the provisions on enforcement are stronger than
what Member States are usually willing to agree to in EU laws about migrant
labour (or indeed EU employment law), it remains to be seen how much resources
Member States are actually willing to expend on enforcement in practice.

Furthermore, since the Directive
is limited in scope to those who are not yet on the territory, it can do
nothing to alleviate the position of those who are present without
authorization but who cannot be returned (ie who are in limbo) and it gives
Member States express carte blanche
to deprive asylum-seekers of even the modest income which they were previously earning
as seasonal workers. Overall, while the Directive will hopefully have some
effect achieving its objectives, it may be a classic example of what academics
call ‘picking the low-hanging fruit’ – focusing on the easier issues and avoiding
the harder ones.

*This post is based on my ongoing
research for the 4th edition of EU
Justice and Home Affairs Law (forthcoming, OUP)